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A Green Light on the Border Wall as Trump’s Supreme Court Victories Mount

In June, 2017, a majority of Supreme Court Justices reached a subtle compromise that few expected regarding Donald Trump’s ban on travellers from predominantly Muslim countries entering the U.S. They issued an unsigned opinion that didn’t quite bless the President’s so-called travel ban—then in its second iteration, after multiple judicial setbacks—but nonetheless gave something to both sides. On the one hand, the Court said, the government would not be allowed to enforce the entry restrictions “against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” But, on the other, “all other foreign nationals” to whom the restrictions applied could be barred from the country. The decision was hugely consequential: the Trump Administration was forced to go back to the drawing board to craft a third executive order—one narrower and less discriminatory than the two that preceded it. A year later, a divided Supreme Court let that order stand as a proper exercise of Presidential power under immigration law.

Like his travel ban, Trump’s desire for a wall along the southern border represents an early campaign promise on immigration that was later whipped into public policy. But, unlike the travel ban, which arguably rested, as Chief Justice John Roberts insisted, on a “comprehensive delegation” of legislative authority to the President, Congress has delegated no such authority to the nation’s chief executive to build a wall. Neither has it appropriated the necessary funds to build it. Instead, legislators turned down his many requests for border-wall funding.

In response to this legislative resistance, over which the President saw fit to shut down the government for the longest stretch in history, Trump took executive action and separately declared a national emergency at the southern border, under the controversial and somewhat failed National Emergencies Act—a statute that, since the Watergate era, has given Presidents broad discretion to respond to true emergencies. Congress rejected Trump again by rebuffing his emergency declaration—a first for any President since the National Emergencies Act became law, in 1976.

Yet Trump soldiered on, vetoing that rejection. As part of the executive defiance, the Pentagon twice notified Congress that it would be shifting funds appropriated for other purposes to build more than a hundred miles of border fencing and similar barriers. Citing “unforeseen military requirements” and the need for “higher priority items,” the Trump Administration told lawmakers that the reprogramming of $2.5 billion for Trump’s border wall was “necessary in the national interest”—all buzzwords that the Defense Department lifted from a military-appropriation act that purports to allow the department to move money around, provided certain conditions are met. Democratic senators who oversee military spending were enraged by this play. “We are dismayed that the Department has chosen to prioritize a political campaign promise over the disaster relief needs of our service members, given the finite reprogramming authority available,” they wrote to Patrick Shanahan, the Acting Secretary of Defense at the time.

Against this backdrop of checks and balances, the Supreme Court chose, on July 26th, to side with the Trump Administration, in the first of the legal disputes over the border wall to reach it. Since the moment that Trump declared a national emergency, relying on this and other authorities to move ahead with a construction project that Congress wouldn’t fund, several lawsuits have been filed—each attempting to prevent the Administration from spending the money and to remind the President how the separation of powers and the power of the purse work.

That’s how a federal judge in California saw the issue, in back-to-back rulings declaring the Pentagon’s repurposing of government funds unlawful, and blocking officials from taking any actions toward building the wall. “The case is not about whether the challenged border barrier construction plan is wise or unwise. It is not about whether the plan is the right or wrong policy response to existing conditions at the southern border of the United States,” U.S. District Judge Haywood Gilliam wrote in one of the rulings. “Instead, this case presents strictly legal questions regarding whether the proposed plan for funding border barrier construction exceeds the Executive Branch’s lawful authority.”

Last month, one of Trump’s least favorite tribunals, the U.S. Court of Appeals for the Ninth Circuit, declined to disturb that conclusion. In so doing, a divided three-judge panel concluded that it had jurisdiction to resolve the dispute and cited Justice Robert Jackson’s famed concurring opinion in Youngstown Sheet & Tube Company v. Sawyer, the 1952 ruling that declared unlawful President Harry Truman’s decision, during the Korean War, to seize steel mills in the name of the national interest. “The executive action we have here originates in the individual will of the President and represents an exercise of authority without law,” the Ninth Circuit majority wrote, quoting directly from Justice Jackson’s words. His analysis has for decades guided courts weighing challenges to Presidential power.

But, without much explanation or grappling with the lower courts’ reservations, the five conservatives on the Supreme Court let the Trump Administration proceed with its plans this past Friday, as the litigation advances in the Ninth Circuit. The Administration’s application to the Court was filed, and granted, on an expedited basis, and the Justices like to say that such preliminary and swiftly issued orders do not represent their views on the merits of a given case. But, in the Trump era, the Supreme Court has bent over backward to give the government much of what it’s asked for, by considering an unprecedented number of requests for emergency or extraordinary relief, and granting many of them. The results, though often procedural, have had a substantive effect—from allowing the enforcement of a transgender ban in the military to stopping the deposition of a Cabinet secretary in the census litigation. The single sentence of reasoning the Court did muster in siding with Trump in the border dispute—stating that the opponents to the wall’s construction “have no cause of action” to question the basis for the Pentagon’s reprogramming of funds—tells us that a conservative majority would rather see this case go away quickly than confront hard questions about executive power and Congress’s role.

According to the Court’s order, Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan wouldn’t have intervened this early in the case. But Justice Stephen Breyer, writing for himself only, appeared to lament that his conservative colleagues weren’t willing to compromise as they had in their preliminary travel-ban decision, in 2017, in which both sides won some and lost some. In Breyer’s view, the Court should’ve struck a middle ground, “allowing the Government to finalize the contracts at issue, but not to begin construction.” Such a compromise “would alleviate the most pressing harm claimed by the Government without risking irreparable harm to respondents,” or, as the District Court ruled, to the environment. He concluded, “I can therefore find no justification for granting the stay in full, as the majority does.”

Instead, the Trump Administration can spend and build unrestricted—for now. The House of Representatives has filed a separate legal challenge to the border-wall funding, arguing that it violates the Appropriations Clause of the Constitution. Last month, a Trump-appointed federal judge rejected the suit, ruling that the House lacked legal standing to sue Trump in this instance. It is an open question how the Supreme Court will respond, and whether it will deliver a blow to the House’s power to counter the President.

ViaNewYorker